By Douglas V. Gibbs
Political Parties in America were a new occurrence during the 1790s. Alexander Hamilton believed the Constitution did not create a powerful enough federal government and set out through his political party, The Federalist Party, to expand the reach of the new general government. True federalists disagreed with Hamilton’s schemes, making the only thing “federalist” about his new political party was the fact that the word “Federalist” was in its name. Considering what Hamilton was really seeking was a large National Government, if named honestly it would have been the Nationalist Party.
In response to Hamilton’s political party creation, Thomas Jefferson launched his own party, the Republican Party. The Jeffersonian Republicans (not the GOP of today) were determined to keep the federal government within the provisions of the United States Constitution as much as possible. Ironically, the Jeffersonian Republican Party would eventually be transformed into the Democratic-Republicans, and ultimately into the Democratic Party who, today, has more in common with Hamilton’s Federalist Party than Jefferson’s Republican Party.
The Federalist Party only achieved one presidency, the John Adams Administration, the second presidency during the history of the United States after the Constitution went into effect, and the first presidency that only lasted one term. After Thomas Jefferson took the presidency in 1801, after a very contentious 1800 Presidential Election, he fired the Federalist Party members of the bureaucracy, reduced America’s National Debt, and led the country into a new span of years that would come to be known as the Era of Good Feelings. By the 1820s, the Federalist Party had fizzled into the annals of history, and the big government Hamiltonian schemes of the past were set aside…for a while.
When the presidency finally electorally landed in the Jefferson camp, President John Adams (a great revolutionary, but a lousy President with Hamilton whispering in his ear) and his obedient Congress under a Federalist Party majority for the last time in history, took advantage of the very long lame-duck session that lasted until Jefferson’s inauguration in March in order to solidify the big government ideology in the judiciary since they were losing both Houses of Congress, and the presidency. The number of justices on the Supreme Court was reduced by one so that if one of the Supreme Court Justices were to die or resign during Jefferson’s presidency the new President would not be able to appoint a new judge. Then, using a scheme now known as the “Midnight Judges,” Adams and his compliant Congress drastically expanded the entire court system. Under the new Judiciary Act of 1801, passed in February of 1801, the number of Circuit Court and District Court seats was doubled, over forty new justices of the peace for the District of Columbia were created, power in the courts was shifted to strengthen the Circuit Courts, and effective only under Adams the President was given more control over appointing Judges. The Jeffersonian Republicans, however, had pulled off a massive trifecta, and the Congress under a Republican majority repealed the act and abolished all of the new judgeships, once Jefferson was in the President’s House (later dubbed The White House). However, the damage had been done with the appointment of John Marshall as Chief Justice, who would use three and a half decades to establish judicial review, the ability of the courts to broadly interpret the Constitution and the laws of the United States, and expand the concept of Federal Supremacy way beyond what the Constitution originally intended. The whole affair led Jefferson to write, “The principal [leaders of the political opposition] have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them.”
During the Antebellum Period attempts to strengthen national control over the lower courts failed, but the tide turned during the War Between the States. Using the unconstitutional scheme of Emergency War Powers, and the excuse of the war to increase federal authority during Reconstruction, the new Republican Party, which at the time sought to expand the power of the federal government, rather than reduce it as seems to be the goal of many members of the GOP today, increased national control over the regional courts. The Congress of the time battled over the idea of weakening the courts to better achieve their legislative desires without judicial interference, while attempting to grant more power to favorable justices in the hopes of strengthening federal power over the States.
During the dawn of 1861 legislation was used to increase the power of the attorney general over the federal courts, providing to the attorney general the power to supervise lower court officers and finances. Immediate resistance was applied by opponents, so in 1862 Congress strengthened the Court of Claims, making the judgments in cases of claims against the government reviewable by the Supreme Court and eliminating the right to appeal to Congress. The move sought to divorce the federal court system’s subservience to Congress, constitutionally established by the Exceptions Clause. In the name of population equality, circuit court lines were also shifted, strengthening the politics of the population centers in each of the federal judicial regions which would ultimately lead to reducing the number of circuit courts in the South. By 1871 the Office of the Attorney General had been reorganized and the Department of Justice was recreated, and circuit court lines were once again moved around to break any southern hold on the Supreme Court.
During Franklin Delano Roosevelt’s Presidency he had to deal with the Great Depression and a federal court system that often responded in opposition to his New Deal ideas. Prior to the New Deal almost all public social welfare spending, or what contemporaries called “relief,” was provided by local governments, and Roosevelt sought to nationalize those efforts, and to increase federal authority across the board in the name of providing relief and the common good. After Roosevelt’s electoral win in 1936 he proposed a bill to reorganize the federal judiciary. The bill would add a new Supreme Court justice each time a current justice turned 70 and failed to retire. This plan became known as “court packing” and shocked the country when it was introduced in February 1937. Roosevelt’s enthusiasm behind the scheme never seemed to convince Congress to go for it, but in the end Roosevelt conveniently outlasted his judicial opposition with seven of the nine Supreme Court justices conveniently dying or resigning shortly after.
Over the last few decades Republican Presidents have enjoyed the luxury of appointing new federal judges than have the Democrats. Despite the GOP’s run, the judiciary is about 70% in line with the progressive left. The Supreme Court, however, largely thanks to appointments by President Donald Trump, and the longevity of Clarence Thomas and Samuel Alito, leans the other way. Facing the possibility of a win by Trump in the Election of 2024, despite all of their efforts to eliminate him through lawfare, and other means, the Democratic Party has come to the conclusion that if they are to survive another revival of conservative politics they need to get control of the United States Supreme Court.
History is clear: the ideologies that seek expanding the powers of government, when they believe their power is threatened or they seek to justify their tyrannical positions, go after the judiciary; especially when the judges are not exactly agreeing with them as they would hope.
The monarchs of Europe used the courts, and the state religion, to solidify and justify their power. The Founding Fathers pursued the concept of a Separation of Powers, and enshrined the establishment clause in the First Amendment, for exactly that reason. An independent judiciary with justices not influenced by election or political pressure from the other parts of government, or the public, were more likely to remain in tune with the rule of law than what had been going on in Old World Europe.
In the United States, however, with the absence of an established church, the tyrants have found it to be incredibly difficult to control the churches of America (though they have convinced some denominations to be allies), so like Adams, the Reconstructionists, and Franklin Delano Roosevelt, today’s purveyors of expanded government power are convinced that the courts must be completely in their favor. If there are judges who do not comply, then the members of the political faction seeking power will devise ways to either reduce the authority of their opposition, outnumber them, or remove them completely.
The Democratic Party through President Biden and Vice President Kamala Harris, in the name of preserving democracy, are seeking to impose term limits and a code of conduct on the Supreme Court while also drafting limits on presidential immunity. Their desire for Supreme Court reform is reminiscent of past attempts by President John Adams and the Federalist Party, the Reconstruction Republican Congress, and FDR as he pursued his New Deal agenda. As Mark Twain once remarked, “History never repeats itself, but it does often rhyme.”
Biden recently wrote that the court daring to rule in a manner that opposes Democratic Party positions, “…undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.”
According to White House officials, President Biden will call on Congress to impose term limits and a code of conduct on the Supreme Court while also drafting limits on presidential immunity.
The problem for them, despite their reluctance to admit it, is that the Constitution has something to say about their plans.
In terms of immunity, the United States Supreme Court came to a largely constitutionally accurate ruling, establishing that the President is immune from criminal prosecution after his presidency ends regarding alleged crimes committed while in office. According to the final paragraph of Article I, Section 3 of the Constitution, the only way to indict, and punish, a President for in-office crimes after the President’s term has ended would be if that same President had been impeached and convicted by the Senate for the same offense before leaving office. Otherwise, once the President is no longer in office, the President shall enjoy the privilege of immunity.
When it comes to a “code of conduct,” there is no power granted by the Constitution that allows Congress, or the Executive Branch, to impose a code of conduct on the judiciary. If judges have committed crimes, violated the ethical nature of their office, or otherwise maladministered the duties of their position, then impeachment is available to remove the judge from his or her position.
As for term limits, when it comes to the Supreme Court, Biden wants to impose a term limit of 18 years for justices. Once fully adopted, it would allow presidents to appoint new justices at a cadence of once every two years. With faith that their election fraud will keep a Democrat in office indefinitely, or that Republican Presidents will only achieve the presidency on occasion and with only one term, that would eventually weed out the conservative justices and give the Democrats the super-majority on the Supreme Court they have been enjoying in the inferior court system. Such a change, however, would require an amendment to the Constitution since in Article III, Section 1 of the Constitution judges are afforded the opportunity to “hold their Offices during time of good Behaviour;” an amendment I doubt three-quarters of the States would ratify. As it stands now, as long as judges are not impeached for bad behavior, they may hold their office as long as they desire until death or resignation. Term limits and the election of justices were not provided for the Judicial Branch specifically so that ideologies could not influence judicial decisions by pressuring the bench through political schemes, the reality that their term may be nearly at an end, or for fear of not being reelected.
In short, the Democrats seek to act against the guardrails provided by the Constitution to preserve our federal republic in the name of strengthening their perception of the guardrails of a fair government under their control in order to preserve democracy. They argue that faith in the Supreme Court has waned because the high court has sided with the Constitution, rather than their authoritarian schemes. While I don’t believe that their current attack on the courts will go anywhere with the current Congress, if after November the Democrats achieve the presidency and a majority in both Houses of Congress they will without a doubt fundamentally change America’s judicial branch to fit their own authoritarian will.
— Political Pistachio Conservative News and Commentary